Judge says secondary arbitration clause can create binding obligation to arbitrate future disputes
Rather than varying a separation agreement, the Ontario Superior Court ordered the parties to take all steps necessary to execute a family arbitration agreement in accordance with Ontario’s Family Law Act, 1990 (FLA), Ontario’s Arbitration Act, 1991, and Family Arbitration, O Reg 134/07.
In Burkay v. Walker, 2026 ONSC 4744, the parties started cohabiting on Apr. 1, 2019, and had a child born that year. With substantial conflict marring their relationship, the parties separated on Sept. 1, 2022.
The parties executed a Feb. 2, 2023, separation agreement that included a dispute resolution clause, which called for negotiation, mediation, or arbitration for future disputes.
After unsuccessful attempts to resolve certain disputes, in an Oct. 28, 2024, letter to the father, the mother’s counsel suggested options, including mediation-arbitration and parenting coordination, for resolving the pending parenting issues.
Through Oct. 31, 2024, correspondence, the father asked the mother to identify the disputed issues, specify the separation agreement terms that she wanted to vary, and give the factual basis for her position.
On Dec. 16, 2024, the mother applied to vary the separation agreement.
The father moved to stay the mother’s family law application. He wanted the disputes to proceed via arbitration under the separation agreement’s dispute resolution provisions.
The Ontario Superior Court of Justice stayed the application under s. 7 of the Arbitration Act and directed the parties to take the steps needed for a family arbitration agreement.
The court ruled that a secondary arbitration clause could create a binding obligation to arbitrate future disputes. The court added that there should be compliance with the O. Reg. 134/07 requirements before the recognition and enforcement of a resulting arbitral award.
According to the court, finding otherwise would enable parties who have explicitly agreed to arbitrate future disputes to avoid their commitment by citing procedural requirements that they could realistically meet only once arbitration was being considered or was in progress.
Section 59.6 of the FLA – defining secondary arbitration as one conducted in line with a court order, among other things – provided that the award would be enforceable only if it met the statutory and regulatory requirements for family arbitration.
In its interpretation, the Superior Court held that s. 59.6 would not make an otherwise binding agreement to arbitrate invalid, simply because the secondary arbitration clause did not incorporate those requirements during drafting.
Instead, the court interpreted s. 59.6 as addressing a subsequent arbitral award’s enforceability for three reasons.
First, the court noted that a secondary arbitration agreement dealt with future disputes in this case.
Given the future disputes’ unknown nature and the possibility that no disputes would ever arise during the agreement’s execution, the court found that requiring the parties to identify a specific arbitrator was neither desirable nor practical.
According to the court, if the parties could agree on an arbitrator, s. 10 of the Arbitration Act would offer a mechanism for appointing one.
Second, the court said the parties could more appropriately address some regulation-prescribed matters shortly before the arbitration process, when the parties’ circumstances, relationship dynamics, and potential power imbalances or domestic violence concerns were capable of assessment, rather than during a separation agreement’s negotiation.
The court added that family law disputes might arise years after a secondary arbitration clause’s negotiation, at which point the pertinent statutory and regulatory requirements for family arbitration could have changed, which might make any certifications earned during the agreement’s execution outdated or inadequate by the time of the arbitration.
Third, the court held that the prescribed terms regarding governing law and appeal rights did not impact the existence of an agreement to arbitrate.
According to the court, the governing law would generally be the law of Canada and of the province where the parties lived.
The court explained that the regulation required family arbitration agreements to include a right of appeal, with the parties able to opt for the default appeal right under s. 45(1) of the Arbitration Act or broader appeal rights on issues of law, fact, or mixed fact and law.
The court concluded that the parties could better select the applicable appeal right when they were aware of the dispute involved and were contemplating arbitration.
Here are some other decisions by the Ontario Superior Court involving family law.
In a family law proceeding, a Superior Court judge issued a May 15 decision denying a father’s second recusal request, which according to the judge abused the process and undermined the administration of justice.
In a case involving the Nipissing First Nation Matrimonial Real Property Law, the Superior Court made a May 4 decision rejecting the mother’s allegation that her former lawyer and the father’s counsel had colluded to prolong the case and charge more fees.
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